Attorney seminar provides a how-to on HR investigations

DeWITT - Area human-resources (HR) professionals attending a recent seminar put on by a Syracuse law firm received insight and guidelines on what to do if they ever have to handle a workplace investigation.

This was the topic of the most recent labor-law seminar conducted March 11 by Mackenzie Hughes LLP at Drumlins Country Club in DeWitt.

The seminar, which drew a crowd of about 65 HR professionals, focused on why HR people should be concerned, when an investigation is necessary, who should perform it, and how the investigation should be handled. Jacqueline Jones - a labor law attorney and partner with Mackenzie Hughes - said there is one message she wanted to emphasize in this seminar: if an employer becomes aware of a problem, it must deal with it right away.

"Once any supervisor - let alone an HR manager - becomes aware that there may be an issue of harassment or discrimination, that knowledge is imputed to the organization. So if an investigation is not done, it's not just the one manager or one HR manager who fell down on the job; it's the whole employer that fell down and failed to fulfill its legal obligation to conduct an investigation," Jones said in an interview following the seminar.

Jones cited two 1998 decisions from the U.S. Supreme Court (Faragher v. City of Boca Raton, 525 U.S. 775 and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742)

that deal with an employer's response to harassment. The rulings say employers must take reasonable steps to prevent harassment, must correct promptly any sexually harassing behavior, and are required to develop, implement, evaluate, and re-fine practices satisfying those duties.

Jones said the reason HR professionals should be concerned is that the Equal Employment Opportunity Commission reported that private-sector discrimination charges for fiscal year 2007 increased 9 percent over the previous year. There were 12,510 sexual-harassment charges, a figure that increased for the first time since 2000. And men filed 16 percent of those charges - the largest percentage ever.

The common scenarios that would ,prompt an investigation are allegations of sexual harassment, in addition to harassment based on other protected categories such as race, gender, religion, and disability. Allegations of company policy violations, theft or fraud, or failure to disclose information would also qualify.

The next step is figuring out who should perform the investigation - an outside investigator, a lawyer, or the human-resources department. Jones said there is no one option that is best for every situation.

"In most cases, it's appropriate for human resources to do the investigation. However, there are some cases where it's usually best to call in an outside, trained investigator someone who has experience, preferably in some type of law enforcement that has credentials that has done many investigations," said Jones.

She said an outside investigator is also the best option if the allegations involve criminal conduct, or sexual harassment that's graphic in nature. A situation like that could make it difficult for an HR official to get accurate information from the person making the complaint, or simply make the investigation uncomfortable for the HR official.

The investigation should get started within 24 to 48 hours after the complaint is received. One of the first questions to be answered is if the accused should still be allowed to work. Jones said it depends on the severity of the allegation, if the individual has a history of complaints, and if there are allegations the accused has been trying to interfere with witnesses.

The bulk of Jones' presentation focused on the actual investigatory process. She said it involves plenty of interviews to gather evidence. The interviews should include open-ended questions, not ones that require just yes/no answers.

When interviewing the accused employee, Jones said the person should be advised there is a complaint. The investigator should try to get as much information as possible, asking open-ended questions and saving the tough questions for last. If the employee refuses to cooperate, the investigation has to conclude by relying on the statements of witnesses, and the employer would then re-evaluate the employee's status.

But what if the accused employee is the boss or company owner?

Jones said that can be a "sticky situation." She said the HR manager should make the CEO aware of how the complaint would be handled, if one is ever received. If the company has a board of directors, that body would handle the investigation.

"So, if you have a not-for-profit or a publicly traded company with a board of directors and the complaint is against the CEO or the president, I would expect that the HR executive will report the matter to either a personnel committee on the board or the chairman of the board, and the board in that case would be responsible for con-ducting the investigation instead of the HR manager investigating his or her boss."

Jones also said it's imperative that every part of the investigation be documented - and the final report should include only the facts of the case, not the investigator's opinion on what's believed to have happened. The report should then go to a special committee to determine if harassment or discrimination did occur.